The ACICA Review – June 2015 1 er 2013 6 THE ACICA REVIEW June 2015 | Vol 3 | No 1 | ISSN 1837 8994 2 The ACICA Review – June 2015 CONTENTS The ACICA Review June 2015 INFORMATION PAGE President’s Welcome ……………………………………………………………….…….……… 3 Secretary General’s Report………………………………………………………………..…….. 4 News in Brief ………………………………………………………………………………….…… 10 AMTAC Chair’s Report …………………………………………………………………….…… 11 CASE NOTES Enforcement of a foreign arbitral award – proper notice – dispute over termination of employment contract …………………………………………………………………………..… 12 Australian courts take a uniform approach to the interpretation of the Model Law……….. 15 Racing through arbitration and court enforcement processes ………...………………….. 19 The enforceability of mediation settlement agreements ……………..…………………….. 22 The enhancement of Australia’s jurisprudence in arbitration law – a brief look at the Supreme Court of Victoria’s recent approach to subpoenas……………………..….……… 24 OTHER ARTICLES ILA International Commercial Arbitration Committee Explores Confidentiality and Implied Powers …………………………………………………………….…………….…….. 27 The use of Evidence to achieve the best outcome in Alternative Dispute Resolution …… 30 International Arbitral Institutions and Substantive Validity of Arbitration Agreements in Mainland China ………………………………………………………………………………….. 32 Indonesia’s Bilateral Investment Treaties: To renegotiate or not to renegotiate? ……….. 38 IAA Reform: Plugging the Plug Black Hole and More ………………………………………. 42 The 2015 Senate Inquiry into the Commonwealth’s Treaty Making Process – and ISDS Policy for Australia ……………………………………………………………………………… 48 ADC Room Hire………………………………………………………………………………….. 52 Editorial Board: Professor Gabriël A Moens (Chair), Professor Philip J Evans, Professor Doug Jones, Mr Peter Megens and Ms Deborah Tomkinson Design by: Dr Victor O Goh The ACICA Review – June 2015 3 Alex Baykitch ACICA President President’s Welcome Welcome to the fourth edition of the ACICA Review, and to our new members since the last edition. New Board Members ACICA 30th Anniversary er 2013 6 I would like to congratulate Georgia Quick on her On 5 May 2015, ACICA celebrated its 30 year election as one of our three Vice Presidents and anniversary. ACICA celebrated this milestone Khory McCormick and Ian Govey AM on their on 19 May 2015 with a speech by Chief Justice French AC of the High Court of re-election as the other Vice Presidents. Ian was Australia on the importance of ACICA. I would also the recipient of a Member of the Order of like to thank the former Presidents of ACICA Australia for his services to the Law, well done Ian! for navigating the organisation over the past Congratulations also to Tony Samuel on his 30 years. Their dedication and hard work re-election as Treasurer and to Doug Jones AO and has been instrumental in raising ACICA’s David Fairlie on their re-appointment to the profile at home and globally. Executive. Meeting with Attorney-General’s Department I would like to acknowledge Frank Bannon of Clayton Utz and Andrew Stephenson of Corrs I recently met with the new Secretary of the Chambers Westgarth who recently joined the Attorney-General’s Department, Chris Moraitis ACICA Board. PSM and other senior members of the department. I am pleased to report the new ACICA is privileged to have the above individuals Secretary is very supportive of International serve on the ACICA Executive and Board, all of Arbitration and is looking forward to working whom are strongly committed to raising the profile with ACICA in the years ahead. A special thank you to Ian Govey AM for facilitating this of ACICA and Australia internationally. meeting. ICCA 2018 Road Shows Preparations are under way with committees being ACICA has undertaken a number of road constituted, sponsorship packages being worked up shows to date with a number planned for this and venues for social events being considered. year in the region and USA. If you would like to be involved please let Deborah Tomkinson ICCA 2018 promises to be an exciting event: stay or Samantha Wakefield know. We would be tuned for further developments and news. delighted to have you involved. Alex Baykitch President 4 The ACICA Review – June 2015 Deborah Tomkinson ACICA Secretary General Secretary General’s Report ACICA turns 30! A succession of high profile Presidents and an active Board has seen ACICA achieve much in its A succession of high profile Presidents 30 years to promote the practice of international arbitration in Australia and position the country as and an active Board has seen ACICA a viable seat for international commercial dispute achieve much in its 30 years to resolution. ACICA’s first President, Mr Ron promote the practice of international Fitch, was the then President of the Institute of Arbitrators Australia. He was followed by arbitration in Australia and position the well-known arbitrator Mr AA (Toni) de Fina, who country as a viable seat for led ACICA for 18 years before passing the baton international commercial dispute to his Vice President and international arbitrator, resolution. Dr Michael Pryles in 2004. Under Dr Pryles’ leadership, ACICA released its first set of Arbitration Rules for administered arbitration in In May 2015 ACICA celebrated its 30th 2005 and launched the Australian Maritime and Anniversary. ACICA was established in 1985 Transport Arbitration Commission (AMTAC) in as a not-for-profit organisation dedicated to the 2007. Professor Doug Jones AO assumed the promotion and development of ADR in the Presidency in 2008, spearheading ACICA’s Asia-Pacific and to advancing Australia’s profile legislative reform agenda to assist the government with its reforms to the International as one of the region’s premier seats for Arbitration Act 1974 (Cth). His Presidency also resolving cross-border disputes. ACICA’s first saw the opening of the Australian Disputes Board consisted of members of the Institute of Centre in 2010, an update to the ACICA Arbitrators Australia (now LEADR & IAMA), the Arbitration Rules in 2011 and the confirmation by Law Council of Victoria, the Australian Bar the government of ACICA as the default Association and the Commonwealth appointing authority under the amended Attorney-General’s Department. International Arbitration Act 1974 (Cth) in the same year. The ACICA Review – June 2015 5 ACICA now looks towards 2018, when it will host the International Council for Commercial Arbitration (ICCA) Congress in Sydney along with its New Zealand partner, the Arbitrators’ and Mediators’ Institute of New Zealand Inc (AMINZ) who will host an add-on event in Queenstown following the conference. At a cocktail event held to honour ACICA’s Justin Rassi, Daisy Mallet, Jason Clapham, Jo Delaney, Peter anniversary, guest speaker the Honourable McQueen Chief Justice French of the High Court of Australia, congratulated ACICA on its achievements of the last 30 years, noting that the organisation is in a position to look forward with a considerable degree of optimism to enhancing Australia’s participation as an important international service provider. Current ACICA President, Alex Baykitch, thanked His Honour for his words and raised a toast to past Presidents of the organszation and to the next 100 years of ACICA. er 2013 6 Frank Bannon, Ian Nosworthy, the Honourable Justice Lindsay Foster Chief Justice French speaking at the ACICA 30th Anniversary Cocktail function on 19 May 2015 Andrea Martignoni, the Honourable Justice Michael Ball Khory McCormick, Georgia Quick, Ian Nosworthy, the Honourable Justice Steven Rares, the Honourable Chief Justice James Allsop AO, Alex Baykitch, James nourable Spigelman AC QC, the Honourable Justice Michael Ball, the Honourable Chief Justice Tom Bathurst AC, the Honourable Justice Lindsay Foster, John Wakefield, Michael Talbot, Ian Govey AM Georgia Quick, James Spigelman AC QC 6 The ACICA Review – June 2015 Welcome Georgia Quick Following the ACICA AGM in March, we welcome Georgia Quick as a new Vice President on the Executive team. Georgia has been involved with ACICA for many years as a Director and will be the first female member of the ACICA Executive. Our thanks go to Jim Delkousis for his support on the Executive team over the course of the last year and we look forward to continuing to work with him on the ACICA Board. As always we are grateful Michael Talbot, Khory McCormick, Michelle Sindler to all members of the Executive for their energetic commitment to ACICA. ACICA Roadshows ACICA had a busy start to 2015 with Roadshows run in the United States, India and United Arab Emirates. On 3 February President Alex Baykitch led a road show in New York, hosted by Clifford Chance and supported by the International Centre for Dispute Resolution, the International Chamber of Alex Baykitch, Jason Clapham, Justin Rassi Commerce, the United Nations Commission on International Trade Law and the Australian Disputes Centre. Georgia Quick, Deborah Lockhart, Daisy Mallet, Jo Delaney, Julie Soars, Michelle Sindler, Deborah Tomkinson New York Roadshow The ACICA Review – June 2015 7 Two separate events were held in New Delhi ACICA Cooperation Agreements and Hyderabad, India on 14 and 17 February, led by Vice President Khory McCormick. In addition to the signing of an agreement with ICADR in India, ACICA also entered into a These events were run in cooperation with the Cooperation Agreement with the Belgian International Centre for Alternative Dispute Centre for Arbitration and Mediation Resolution, India and the Australian Disputes (CEPANI) in May and a Memorandum